When is non-immigration intent established?

[Dr_LHA 3]

Yes, OK. My point is that "forgiveness" is too strong a term to use as although they can't hold it against you now, they might do in the future.

[MPGGPM 0]

Hi MPGGPM, thanks for being back! Can I ask if your wife was ever asked about her I-130 when she entered on F-1? Does it help at all that she would have to go back for her consulate interview? Or is it simply not mentioned? The "immigration intent being trip-specific" concept is new to me, so I'm trying to grapple with it. Thanks.

What she told me that they asked her was....."Why did you choose the particular university you are attending?".

That's it.....that's all that they asked her. It was a question that really didn't have anything to do with immigration, as much as it seemed to be a question the officer just felt curious to ask her.

After he asked that one question, and my wife answered , they let her through.

I feel pretty lucky and fortunate in that each time my wife has come to the USA while our immigration process has been going on, she has never been asked a lot of questions, nor ever been given a hard time. 4 times in all she has been here while our application was pending at USCIS or NVC. (not all were on the F-1, though...3 times it was on the tourist visa).

I don't want to really lead you on as far as your second question about the "consulate interview". It's hard for me to say just "what" exactly a POE officer sees on their screen. I do not know to what extent they are aware of things at the POE....and why our pending application was never brought up by the customs officer. When my wife entered the USA on the F-1, it was just before we received the Notice of action #2 for our I-130. And the last time she entered on the tourist visa, we were midway through the NVC stage. I have read of others who have entered while their immigration process was taking place, and they have been asked MUCH tougher questions than my wife, and asked to show much more documentation. Many have been taken to "secondary questioning".

I wouldn't want you to get a false sense of security by what happened with my wife. Everyone's circumstances are different, and maybe there were other reasons she was not asked so many questions. It might have more to do with the fact that by the time of our marriage and all this taking place, she had accumulated a long history of coming and going into the USA, for a period of nearly 13 years.

That might have had more to do with things than anything else. Maybe after a 13 year history of coming and going into the USA, she garnered more trust over the years, .....never having overstayed any visa , etc....or doing anything contrary to the rules of whatever visa she traveled with at the time. So, by the time she married me,.......she had a very long track record to go by.

You having been here only since 2005 (not sure if you have traveled out of the USA since?).......you haven't accumulated such a record, and therefore may not gain the trust my wife had at the POE, since you've only been here for barely 1 and a quarter years. That is something else you will need to consider, among other factors.

[Dr_LHA 3]

In 8 years of living in the USA and travelling a lot I've gotten the third degree more than a few times upon entering the USA from CBP officers, including being sent into a room full of people for further questioning for no apparent reason. I've also found certain POEs are better than others. For example LAX always put me through the ringer, Dulles always seemed like a breeze.

Actually the last time I entered on a visa (as opposed to Green Card) I got grilled about my immigration intentions, bizarrely, considering I had an H-1B visa. I told him: Yes, I'm married and am going to file AOS in about 2 months!

[brightsunshine 0]

Agree that "no statutory bar for AOS" != "forgiveness". I think that the mere fact of filing AOS from F-1 violates "terms of the nonimmigrant visa", so they kind of have to put the exclusion there, or else it would effectively be impossible for F-1s to adjust status.

Maybe after a 13 year history of coming and going into the USA, she garnered more trust over the years, .....never having overstayed any visa , etc....or doing anything contrary to the rules of whatever visa she traveled with at the time. So, by the time she married me,.......she had a very long track record to go by.

You having been here only since 2005 (not sure if you have traveled out of the USA since?).......you haven't accumulated such a record, and therefore may not gain the trust my wife had at the POE, since you've only been here for barely 1 and a quarter years. That is something else you will need to consider, among other factors.

Thanks for sharing!

Actually, 2005 was the last time I renewed my F-1, and I've already gone in and out 3 times since. I've been in the USA on F-1 for a total of more than 10 years now. I went to undergrad in the US, then went home and worked a few years, then came back for my PhD. Also no overstay, no work without EAD, etc. (Sorry I didn't mention it earlier - didn't want to start with my whole life story, and thought it wasn't relevant...) So it's good to hear that your wife is in a similar situation and had an easy time. If anything, I would have thought the opposite - that they would be more skeptical of people who have spent significant amount of time in the US.

I've also found certain POEs are better than others. For example LAX always put me through the ringer, Dulles always seemed like a breeze.

I also thought that LA always gave me a hard time too!

I got grilled about my immigration intentions, bizarrely, considering I had an H-1B visa. I told him: Yes, I'm married and am going to file AOS in about 2 months!

That must feel kind of B)

One of the lawyers called me back today and said that if I marry 60 days after entry, they will not ask me about intent. For what it's worth. Another said will call tomorrow. At least these initial consultations are free.

So now I guess the choices are:

1) Don't go, get married & file AOS whenever, and deal with the heartbreak when my brother calls for help. Minimal risk, some pain.

2) Go. Get married as soon as I get back, and file K-3/CR-1. Hopefully interview within 9 months so I can go to sister's big wedding (and maybe piggyback ours!). Minimal risk, more expense.

3) Go. Wait >60 days after I come back, get married, and file AOS. Some risk.

Edited March 7, 2007 by brightsunshine

[Dr_LHA 3]

Yeah, I can imagine that marriages below 60 days sets off red flags at USCIS, so waiting would definitely make it less likely that an IO would pick up on it.

[rebeccajo 14]

Yeah, I can imagine that marriages below 60 days sets off red flags at USCIS, so waiting would definitely make it less likely that an IO would pick up on it.

That's supposed to be an old wives tale. I've gotten sore on trying to remember how it started and why they now say it never was.

[Dr_LHA 3]

That's supposed to be an old wives tale.

Yeah that sounds equally plausible. If it is its rather unfortunate that an immigration attorney would be repeating it though.

[brightsunshine 0]

Reporting on lawyers' comments:

Lawyer #2: Adjudicators (in Boston) sometimes view preconceived intent as fraud... BIA decisions are binding, so if they deny it and you appeal you'll win. But it'll take time and money.

Lawyer #3: The officers' attitudes are highly varied. Some frown upon preconceived intent, and might give you a hard time, say they'll think about it and stall your application for a while. But they won't deny the adjustment. Others won't raise the issue at all. If you allow >2 months before entry and marriage, and >3 months between last entry and AOS, there most likely won't be a problem.

The boy thinks I shouldn't go, not because he thinks there will be a problem, but because he knows I will drive myself crazy worrying about it. (I wonder where he got that idea from... )

I must admit to over-thinking, but over-researching has yielded something useful: it would have been dangerous to follow option 2 in post #64:

2) Go. Get married as soon as I get back, and file K-3/CR-1. Hopefully interview within 9 months so I can go to sister's big wedding (and maybe piggyback ours!). Minimal risk, more expense.

This reason is that (as confirmed by lawyer #2) filing for K-3 also expresses immigrant intent, and the fact that I will leave to interview at the consulate does not matter. This is in contradiction to what some VJ members believe - that merely leaving the US fulfills the requirement of the nonimmigrant visa. So by filing K-3 soon after entry, I would have broken the 30/60 day rule, which is followed at the consulates (FAM, linked earlier), and I could be denied the K-3 (there might be a waiver - ?).

Detailed reasoning is found in this post on http://groups.google.com/group/alt.visa.us.marriage-based (a bit long, and from 2000, but good, I think):

Conventional wisdom in this newsgroup has held that a 30/60 day rule applies to the INS when marrying on a tourist visa, and if you've broken this rule, the safest thing to do is to depart the U.S. and file for a I-130 spousal Immigrant visa, lest the INS charge you with visa fraud at your AOS interview.

I'm suggesting now that the exact OPPOSITE is true. If you marry less than 30 days after entry, it would be SAFER to stay and AOS, than to depart an apply for a spousal visa.

Here's why:

First, the 30/60 day rule:

An alien who...<snip>... informs an immigration inspector at the port of entry that the purpose of his or her entry is tourism, etc., and who within thirty days of ... entry... marries and takes up permanent residence...may be presumed to have misrepresented his or her intention in seeking a visa or entry. The burden of proof then falls on the alien to establish that his or her true intent was to visit, tour, etc. In the absence of any further offering of proof by the alien to re-but the presumption, a finding of ineligibility will result.

Now, where do find this rule? It's in the Foreign Affairs manual for Consular officers. My research of INS Operating Instructions finds no such rule referenced anywhere.

Thus, since the FAM is in no way binding to INS Adjucators, they are not required to follow the 30/60 day rule. However, BIA decisions ARE binding on INS officers, and they say:

In the absence of other adverse factors, an application for adjustment of status as an immediate relative should generally be granted in the exercise of discretion notwithstanding the fact that the applicant entered the United States as a non-immigrant with a preconceived intention to remain. Matter of Cavazos, Int. Dec. 2750(BIA 1980) clarified and reaffirmed. Matter of Ibrahim, Int. Dec. 2866 (BIA 1981).

So, what can I conclude from this? I conclude that if you file AOS in the U.S., even marrying 1 day after entry, the INS has no choice but to grant you AOS. In the precedent BIA decision listed, the alien married 1 day after entry, and even ADMITTED his intent! The BIA said he should be adjusted anyway.

However, if you marry 1 day after entry in the U.S., and then depart and file for an Immigrant Visa, the Consular officers MAY decide to apply the 30/60 day rule to you before issuing you another visa!

Now, obviously, you're saying, hey - if I depart, doesn't that *prove* I was not intending to immigrate?

In my opinion, not necessarily. Let's suppose before you first left [for] the U.S., you cleared up your affairs (i.e. quit your job, sold your house, etc...) Now, you fly to the U.S., marrying immediately, and OVERSTAY as long as legally possible! That certainly might construe the "marries and takes up permanent residence" clause in the 30/60 day rule!

Thus, I propose that if you cleared your affairs before departing the U.S., marry immediately, apply for a spousal visa, and then overstay until it is issued, your actions may very well trigger the 30/60 day rule. Whereas, if you just stayed in the U.S. and filed AOS, you would not be subject to the 30/60 day rule, and instead would be subject to the BIA decision.

I'm not suggesting that ALL overstaying will trigger the "takes up permanent residence" clause.If you marry > 60 days, then the 30/60 day rule CANNOT be applied to you. Thus, coming to the U.S., marrying after 60 days, then overstaying, and obtaining a spousal visa, should NOT be a problem.

Now, staying and filing AOS is not without its dangers. Recently, someone who did just that was asked at the AOS interview, "what did you tell the POE officer you were planning to do when you entered the U.S."? This person then admitted that they told the POE officer that they lied, and said they were going on vacation and planned to depart in 2 weeks. Obviouslly, this was NOT the right answer. If you admit to lying, you will be charged with fraud, and denied AOS, which this person was. Had this person just said "I don't remember exactly", it's likely that the BIA decision would have prevailed, and they would have been allowed to adjust.

Thoughts?

[Kez/JWolf 6]

The 30/60/90 day rule does not exist in the eyes of USCIS, only in the eyes of lawyers.... and to be honest it dont matter how much legal stuff you have found it all comes down to the CBP officer at POE and the USCIS officer at AOS interview.... all the stuff you have found would be good if you were going to court to argue your case.... but to get you into the US and to get you approved at AOS interview it will do you very little good....

You have done what you set out to do... find enough stuff to convince yourself that what you plan to do is OK and will work for you.... well done..

Good luck

Kez

[brightsunshine 0]

You have done what you set out to do... find enough stuff to convince yourself that what you plan to do is OK and will work for you.... well done..

I don't feel that this is a fair statement. As mentioned, I can definitely imagine not going on this trip. I agree with what you and others have said about the randomness of the adjudication process. That aside, the details are still important to me, for these intellectual and practical reasons:

1) I am informed enough now that if something urgent were to happen at home (I made 3 trips in the past 2 years for sickness/deaths of close relatives, so I thought I should be prepared), I would know the issues and risks involved.

2) I realized that it would have been a mistake for an F-1 who get married soon upon entry to file K-3, preconceived intent or no, even though this might seem like the "right thing" to do. Because this 30/60 days rule is in the FAM used at the consulate, and if the event occurs less than 30 days of entry, the onus is on the intending immigrant to prove that they didn't "take up residence" or have intent. Both are really difficult for a student, who either has no job or has only US income, has most of their stuff in the US, and who might want to stay in the US for school until the time comes for the consulate interview.

3) I find reading case law downright entertaining. Someone trying to prove that they have committed enough crime so they could use a waiver for committing crime, then being told they have in term committed fraud, then need a waiver for that? You can't make that stuff up.

I respect your opinion that all these considerations are not important to you, were you in my situation. Can you please respect mine?

Edited March 8, 2007 by brightsunshine

[Kez/JWolf 6]

2) I realized that it would have been a mistake for an F-1 who get married soon upon entry to file K-3, preconceived intent or no, even though this might seem like the "right thing" to do. Because this 30/60 days rule is in the FAM used at the consulate, and if the event occurs less than 30 days of entry, the onus is on the intending immigrant to prove that they didn't "take up residence" or have intent. Both are really difficult for a student, who either has no job or has only US income, has most of their stuff in the US, and who might want to stay in the US for school until the time comes for the consulate interview.

There would be nothing to stop you filing for a K3 visa after entering on a F-1, as a K3 visa would not allow you to remain in the US you would have to return to your home country to do the processing..... there are many many people who enter on many different types of visa get married file for a K3 while they are still in the US and then return home to do the processing and return on the K3 visa after it has been approved.....

If you were to get married and file for AOS after entering on a F-1 you would not be filing for a K3 you would be filing a I-130 as an immediate relative of a USC and I-485 to adjust your Status.... no one is saying you cant or should not file for AOS after entering on a F-1 what they are saying is that if you take a trip just before your wedding and then return you COULD have issues about intent on your last entry....

If once you have got married and you file for AOS if there is an emergency at home and you need to return then you file for an Emergency AP. that will allow you to go and come back without abandoning your AOS.... you can file for a standard AP along with your AOS or you can apply for an Emergency AP at your local office if an emergency comes up....

Yes I respect your situation.... but you did come here and ask our advice... and you have come over as dismissing all and any advice given here and found thing you think might allow you to do your trip and return and file for AOS and have legal case studies to back you up..... all I was pointing out to you was that the average CBP officer or average USCIS officer is not going to be interested in your legal arguments as to why you should be allowed to do something that they may well interpret as entry with intent... they will just deny you...

Yes USCIS case studies are useful in the correct place but standing at the immigration desk at your POE airport they are not going to offer you help at all....

Kez

[brightsunshine 0]

I read through the whole thread, and honestly don't think I was being dismissive. I've acknowledged and thanked every one who contributed. I don't think we even disagree on the safest course of action, and that immigration officers pretty much do whatever they want. It might annoy some that I didn't stop the discussion there, because of my desire to get to the bottom of things.

What I had problems with were quite a bit of comments that came off as judgmental to me - that preconceived intent was "not right", "fraud" etc, accusations that I was seeking reassurance rather than discussion, and I have to admit I disagreed with and tried to debate those. Like overstays and working without EAD, having preconceived intent is against immigration rules, but not a bar to AOS. I agree with rebeccajo that breaking any rules counting on it being not a bar to AOS is risky. I cannot find basis in the law that says one is better than the other, so I concluded that the very different opinions on the various violations must be based at least in part on emotions, which I think are very understandable given the circumstances.

There would be nothing to stop you filing for a K3 visa after entering on a F-1, as a K3 visa would not allow you to remain in the US you would have to return to your home country to do the processing..... there are many many people who enter on many different types of visa get married file for a K3 while they are still in the US and then return home to do the processing and return on the K3 visa after it has been approved.....

The only reason I'm still belaboring the thread is that the K1/K3 option were offered to me on this thread, and initially I was confused as to why that would be more acceptable than AOS if I had entered with preconceived intent. I was told that intent was "trip specific", and that if I left to attend consulate interview, it would somehow be ok. I seriously considered this option, and now I'm glad I looked into it more because it would be even riskier than filing AOS, especially if I marry & file soon after my entry, thinking it'd be ok. And I think this issue may be applicable to many on F-1, J-1 and other nonimmigrant "long stay" visas, who do not have a job or a lot of things back home, and who won't leave the US immediately. I want to share this finding so others who might be in similar situation can take it into consideration. The case of tourists, who can go back to a job etc, after a brief visit, to complete K-1/K-3 is of course non-problematic, as you noted.

Apologies for dragging this on. Thanks for everyone's time and advice and kind words.

[lostinblue 1,989]

I wish you luck,hope you decide to stay here in the us after getting your doctorate. After your AOS please inform us of your outcome.

[MPGGPM 0]

There would be nothing to stop you filing for a K3 visa after entering on a F-1, as a K3 visa would not allow you to remain in the US you would have to return to your home country to do the processing..... there are many many people who enter on many different types of visa get married file for a K3 while they are still in the US and then return home to do the processing and return on the K3 visa after it has been approved.....

The only reason I'm still belaboring the thread is that the K1/K3 option were offered to me on this thread, and initially I was confused as to why that would be more acceptable than AOS if I had entered with preconceived intent. I was told that intent was "trip specific", and that if I left to attend consulate interview, it would somehow be ok. I seriously considered this option, and now I'm glad I looked into it more because it would be even riskier than filing AOS, especially if I marry & file soon after my entry, thinking it'd be ok. And I think this issue may be applicable to many on F-1, J-1 and other nonimmigrant "long stay" visas, who do not have a job or a lot of things back home, and who won't leave the US immediately. I want to share this finding so others who might be in similar situation can take it into consideration. The case of tourists, who can go back to a job etc, after a brief visit, to complete K-1/K-3 is of course non-problematic, as you noted.

Apologies for dragging this on. Thanks for everyone's time and advice and kind words.

You might have misinterpreted what some people were saying to you. For example, when I discussed how my wife had entered while we were doing the I-130 on her F-1......and then brought up the k-3 issue, I assumed you had planned on doing things differently than what you are saying you were now contemplating.

I, nor most likely the majority of the people who responded, did not assume you had still planned to leave on the F-1 ( for your March trip), then come back, marry shortly after, and then on top of that, stay here in the USA on the F-1....file for the K-3...remain here for however long it takes.....and then maybe a day or 2 before the interview, you fly back home, have the interview in China, and then return to the USA a short while later . Hardly any separation at all........(sounds nice )

That IS a nice scenerio..........but would probably create a LOT of issues for you, not the least of which is you planned it all prior to re-entering the USA, (again, intent....and although you will leave for a few days to get the K-3, you are practically STILL staying in the USA permanently, adjusting status, and all with the prior knowledge that you would be doing so(before you entered the USA on the F-1) . It is almost identical to the AOS scenerio, except that you do have to leave the USA to get your K-3, but for only a few days.

However, I believe what most people assumed you intended to do was to marry BEFORE leaving on the F-1 and "not" taking the March trip.....because while you are still here now in the USA, it is apparent everything was not planned nor intentional upon your last entry into the USA on your F-1, (plus you have been in the USA for much longer that the 60 days)..........THEN, you file for the k-3,...... leave......and await the visa in your home country.

And perhaps of course, in the meantime, if you have to enter again on the F-1 (like my wife did while we had an I-130 being processed)....to do work for your PhD.....you could perhaps try.(I say "try", because remember after filing a k-3, entering on the F-1 becomes more difficult) But at least if you did so after the marriage, and after filing for the k-3, it would be similar to the circumstances with my wife, who just came to present her dissertation.....then left.

But what you appear to be thinking of, was not what I believe most (if any) thought you intended to do. And that is...........leave at the end of March......come back on the F-1......marry........file a k-3 ........and stay here in the USA, together with your husband, no time separated .......and then, maybe for a few days, you leave to go back to China , interview, and then come back. (mind you, the key is that now ALL of this would have been planned prior to your re-entry on the F-1)

If that was indeed your intention....then of course that would raise some SERIOUS eyebrows with US Immigration. I would certainly imagine that you could get into some trouble for that......which seems to be circumventing what most people have to do when they file for the k-1, or k-3, and that is.........you are avoiding ANY time being separated from your husband at all. And on top of that, you get to keep your March trip, and your schedule of plans.

Believe me......that was not what I, nor most likely the others, thought you were intending to do, when we said that you could consider a k-3.

That , I would think, would raise a LOT of suspicion at the embassy or consulate.

And I don't think anyone here would want that to happen to you...........

[Dr_LHA 3]

I have no idea why anyone is talking about K visas in this thread, to be honest, other than that's what most people here know. If the OP is already here in the USA, why would they need a visa, when they can legally file AOS from their current status? The amount of effort, time and money that it would take to get a K visa wouldn't be worth it compared to the alternative, which is just filing for AOS without leaving the USA.